Judge and Jury?

Judge & Jury?

how "Notice and Take Down" gives ISPs an unwanted role in applying the Law to the internet

written by: Richard Clayton
Internet Expert, Thus plc
richard@demon.net

Summary

The widely reported out-of-court settlement of the defamation action Godfrey v Demon Internet in favour of the physicist Dr Laurence Godfrey has ignited a debate as to how far Internet Service Providers (ISPs) should be responsible for material on the Internet.

Many UK laws are such that the safest thing that ISPs can do is to "take down" material once put on "notice" that it may be unlawful. This can lead to injustices as lawful material is censored because ISPs cannot take the risk that a court will eventually agree that it can indeed remain available.

The authors whose material is "taken down" by an ISP will increasingly be looking at their own legal rights. As ISPs seek to insulate themselves from actions for breach of contract, their terms and conditions will appear more and more arbitrary to potential customers, who will increasingly look abroad for services such as web hosting.

This paper gives an account of recent events and discusses the rapidly increasing level of complaints already being received by ISPs. Several legal frameworks are reviewed, particularly the situation in the USA, where ISPs enjoy considerable immunity.

Two particular legal solutions to the problems faced by ISPs are then examined:

The first possible solution is blanket immunity for ISP activities. This has obvious attractions for the industry, since the only need is to act on orders made by the courts. It will, however, increase the general cost and complexity of removing disputed material from the Internet.

The second proposed approach is a new statutory regime that would cover not only defamation but also a range of other issues. It strikes a balance between complex burdens for ISPs and prompt responses to complaints that harm is being done. It is designed to be "lightweight" and in very many cases it may operate without the courts becoming involved at any stage. It works in a similar way to USA's Digital Millennium Copyright Act's approach to copyright infringement. The proposal is designated "R4", and works as follows:

Report


- a complainant serves a notice of infringing material

Remove


- the ISP removes it, without judging the merits

Respond


- the author can contest this by asking for replacement

Replace


- again the ISP acts automatically

The key legal protections provided by both solutions would be that the ISP is not liable to either complainant or author if they follow the process; and, as a safeguard for all concerned, malicious or negligent claimants can be penalised by the courts.

The public policy result of either solution would be that certain aspects of UK law could be applied on the Internet without having to co-opt the ISPs to become "Judge and Jury".

More here.